Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT BOB GUALTIERI, Sheriff of Pinellas County, Appellant, v. RONALD J. POWNALL and G4S SECURE SOLUTIONS (USA) INC., Appellees. No. 2D20-3315 March 30, 2022 Appeal pursuant to Fla. R. App. P. 9.130 from the Sixth Judicial Circuit Court for Pinellas County; Amy Williams, Judge. Anne F. McDonough, Senior Associate Counsel of Pinellas County Sheriff's Office, Largo, for Appellant. Kristen Collins Ware, Marc Matthews, and Sean T. Becker, of McIntyre Thanasides Bringgold Elliot Grimaldi Guito & Matthews, PA, Tampa, for Appellee Ronald J. Pownall. No appearance for Appellee G4S Secure Solutions (USA) Inc. STARGEL, Judge. Bob Gualtieri, in his official capacity as Sheriff of Pinellas County (the Sheriff), appeals from a nonfinal order denying his motion to dismiss in this negligence action brought by Ronald J. Pownall. Because we conclude that Pownall's negligence claim against the Sheriff is barred by the doctrine of sovereign immunity, we reverse. Background On November 30, 2016, Pownall was detained, placed in arrest restraints, and placed in the rear compartment of a prisoner transport van (the vehicle). The vehicle, which was owned and maintained by the Sheriff, was not equipped with seatbelts or other restraining devices for riders in the rear compartment. On the date of the incident, the vehicle was operated by an employee of G4S Secure Solutions (USA) Inc., an independent contractor. During transport, Pownall alleges that he was injured when the driver slammed on the brakes, causing him to be thrown from his seat and strike his body against the metal interior of the rear compartment. 2 The operative complaint includes claims for negligence against G4S (count one) and the Sheriff (count two).1 Count two alleges that the Sheriff negligently removed all restraining devices and safety belts from the rear compartment and, in doing so, breached a duty to safely transport Pownall in the vehicle. The Sheriff moved to dismiss, arguing, among other things, that count two failed to state a claim for relief and was barred by sovereign immunity. After a hearing, the trial court denied the Sheriff's motion, finding that "based on the allegations that . . . [the] Pinellas County Sheriff is the owner of the vehicle, and that the seat belts had been removed, and that there is a negligence claim here, on that basis, the Court will deny the motion to dismiss."2 1 Count three, a dangerous instrumentality claim against the Sheriff, has been voluntarily dismissed. 2 Despite the lack of specific findings on the issue of sovereign immunity in the trial court's order, we have jurisdiction over this appeal. Florida Rule of Appellate Procedure 9.130 was recently amended "to expand the availability of appellate review of nonfinal orders denying sovereign immunity." In re Amends. to Fla. R. of App. P. 9.130, 289 So. 3d 866, 867 (Fla. 2020). As amended, the rule "allow[s] appeals of nonfinal orders that deny a motion that asserts entitlement to the types of immunity addressed in those subdivisions" and "remov[es] the requirement that the orders 'determine that, as matter of law, a party is not entitled' to the immunity asserted." Id. at 867. Resolving the issue at this 3 Analysis The Sheriff argues that the trial court's ruling was erroneous insofar as it rejected his claim that count two was barred by sovereign immunity. Our standard of review for this issue is de novo. See Lee Mem'l Health Sys. v. Hilderbrand, 304 So. 3d 58, 60 (Fla. 2d DCA 2020). And because this issue was decided on a motion to dismiss, we must take the facts as set forth in the operative complaint as true. See Clerk of Cir. Ct. & Comptroller of Collier Cnty. v. Doe, 292 So. 3d 1254, 1255-56 (Fla. 2d DCA 2020). "The State of Florida has waived sovereign immunity from liability in tort actions 'for any act for which a private person under similar circumstances would be held liable.' " Pollock v. Fla. Dep't of Highway Patrol, 882 So. 2d 928, 932 (Fla. 2004) (quoting Henderson v. Bowden, 737 So. 2d 532, 534-35 (Fla. 1999)); see also juncture is also consistent with the supreme court's directive in Florida Highway Patrol v. Jackson, 288 So. 3d 1179, 1158-86 (Fla. 2020), that because sovereign immunity includes immunity from suit, "courts should determine entitlement to sovereign immunity as early as the record permits." See also Powell v. Woodard, 300 So. 3d 784, 785 n.* (Fla. 1st DCA 2020) ("[Rule 9.130] was revised by the supreme court in light of Jackson to make it easier for governmental bodies to obtain interlocutory review of sovereign immunity decisions."). 4 § 768.28(1), Fla. Stat. (2016). "[T]here can be no governmental liability unless a common law or statutory duty of care existed that would have been applicable to an individual under similar circumstances." Henderson, 737 So. 2d at 535. Thus, in order to determine whether count two is barred by sovereign immunity, we must first determine whether the Sheriff owed Pownall a duty of care. "If no duty of care is owed with respect to alleged negligent conduct, then there is no governmental liability, and the question of whether the sovereign should be immune from suit need not be reached." Pollock, 882 So. 2d at 932; see also Kaisner v. Kolb, 543 So. 2d 732, 734 (Fla. 1989) ("[C]onceptually, the question of the applicability of [sovereign] immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity." (quoting Williams v. State, 664 P.2d 137, 139 (Cal. 1983))). However, if a duty of care is owed, we must then determine whether sovereign immunity bars an action for a breach of that duty. Pollock, 882 So. 2d at 933. 5 A. Duty The Florida Supreme Court has recognized that a special tort duty arises "when law enforcement officers become directly involved in circumstances which place people within a 'zone of risk' by creating or permitting dangers to exist, by taking persons into police custody, detaining them, or otherwise subjecting them to danger." Pollock, 882 So. 2d at 935. In accordance with the principles of ordinary negligence, this analysis "focuses on whether the defendant's conduct foreseeably created a broader 'zone of risk' that poses a general threat of harm to others." Henderson, 737 So. 2d at 535 (quoting McCain v. Fla. Power Corp., 593 So. 2d 500, 502 (Fla. 1992)). In this case, Pownall argues that a duty of care arose because the Sheriff's decision to remove seatbelts from the rear compartment of the vehicle in which he was later transported created a foreseeable zone of risk. Taking the allegations in the operative complaint as true, it was foreseeable that Pownall, who was wearing arrest restraints and had no ability to brace himself inside the rear compartment of the vehicle, would be at risk of injury in the event of a collision or sudden stop. See, e.g., Woods v. 6 Ohio Dep't of Rehab. & Corr., 721 N.E.2d 143, 146 (Ohio Ct. App. 1998) (holding that it was reasonably foreseeable that a prisoner would "encounter a dangerous situation while physically restrained in the back of a van not equipped with safety restraints"). The Sheriff argues that no duty existed because he did not violate any statutory or regulatory provision requiring the use of seatbelts in prison transport vans. In support, he relies on Roble v. United States, No. CV PX-16-4045, 2018 WL 1014928 (D. Md. Feb. 22, 2018), and Vinson v. United States Marshals Service, No. CA 0:10-79-RMG, 2011 WL 3903199 (D.S.C. Sept. 2, 2011), aff'd, 459 F. App'x 221 (4th Cir. 2011), both of which found that prison officials had no duty to provide seatbelts for inmates riding in transport vans. Neither of those decisions, however, addressed the zone-of-risk theory that Pownall asserts in this case. Thus, while the lack of a statutory or regulatory provision requiring seatbelts was determinative of the duty question in those cases, the same cannot be said of Pownall's claim against the Sheriff here. As such, we conclude that the operative complaint contains sufficient allegations at the pleading stage that the Sheriff placed 7 Pownall within a foreseeable zone of risk and thus owed him a duty of reasonable care. B. Sovereign Immunity Having determined that Pownall has plausibly alleged the existence of a duty of care, we turn to the question of whether count two is nevertheless barred by sovereign immunity. Under Florida law, "sovereign immunity is both an immunity from liability and an immunity from suit." Fla. Highway Patrol v. Jackson, 288 So. 3d 1179, 1185 (Fla. 2020). In order to determine whether an action is barred by sovereign immunity, "it is necessary to ascertain the character of the allegedly negligent governmental act or omission." Pollock, 882 So. 2d at 933. "[B]asic judgmental or discretionary governmental functions are immune from legal action, whereas operational acts are not protected by sovereign immunity." Id. (citing Henderson, 737 So. 2d at 537-38). Discretionary functions involve "an exercise of executive or legislative power such that a court's intervention by way of tort law would inappropriately entangle the court in fundamental questions of policy and planning." City of Freeport v. Beach Cmty. Bank, 108 So. 3d 684, 690 (Fla. 1st DCA 2013) (quoting Mosby v. Harrell, 909 8 So. 2d 323, 328 (Fla. 1st DCA 2005)); see also Com. Carrier Corp. v. Indian River County, 371 So. 2d 1010, 1020 (Fla. 1979) (recognizing exception to waiver of sovereign immunity for "certain policy- making, planning or judgmental governmental functions [which] cannot be the subject of traditional tort liability"). Operational functions, on the other hand, are "not necessary to or inherent in policy or planning" and "merely reflect[] a secondary decision as to how those policies or plans will be implemented." City of Freeport, 108 So. 3d at 690 (quoting Dep't of Health & Rehab. Servs. v. B.J.M., 656 So. 2d 906, 911 n.4 (Fla. 1995)). Despite the lack of decisions from Florida courts on the specific issue presented in this case, numerous courts from other jurisdictions have previously held that the decision of whether to provide seatbelts in vehicles used by law enforcement to transport prisoners or detainees is a discretionary matter to which sovereign immunity attaches. For instance, in Vinzant v. United States, 458 F. App'x 329, 333 (5th Cir. 2012), the Fifth Circuit held that the decision of the U.S. Marshals Service to secure prisoners with seatbelts was "based on a policy choice—striking a balance between the safety of the prisoners during transport and the safety of 9 Marshals, which might be imperiled if the Marshals had to get close enough to the prisoners to buckle and unbuckle their seatbelts."3 The decision of the court in MacCaffray v. United States, No. 2:97-CV-403, 1998 WL 560047, at *3 (D. Vt. Aug. 27, 1998), echoes these same concerns: The decision by the U.S. Marshals Service for the District of Vermont not to install seat belts for prisoners in its transport vehicles was made in the clear exercise of its judgment[, and] was based upon sound safety concerns involving the use by prisoners of the safety belts to break handcuffs and escape, or any attempts to injure deputies who were fastening and releasing their seat belts. The discretionary function exception is intended to cover exactly these sorts of public policy-driven considerations. Other courts have similarly determined that the use of seatbelts in transporting prisoners is a discretionary, policy-driven decision which is not subject to waiver of sovereign immunity. See, e.g., Reynolds v. United States, No. 4:04CV95/RV/EMT, 2006 WL 5400338, at *5 (N.D. Fla. Jan. 30, 2006) (explaining that "the 3 Because Florida's sovereign immunity provision is modeled after the Federal Tort Claims Act (FTCA), Florida courts have routinely looked to the FTCA and cases interpreting it for guidance in resolving questions pertaining to the scope of immunity under state law. See Rabideau v. State, 409 So. 2d 1045, 1046 (Fla. 1982); Commercial Carrier, 371 So. 2d at 1017-20; Hollis v. Sch. Bd. of Leon Cnty., 384 So. 2d 661, 663 (Fla.1st DCA 1980). 10 decision of . . . whether to use safety belts is inherently grounded in social policy considerations of providing security to the public and employees of the [U.S. Marshals Service] and protecting the safety of prisoners" and thus "the failure to provide safety belts was based upon the exercise of a discretionary function"); Maryea v. Velardi, 135 A.3d 121, 126 (N.H. 2016) (holding that lack of seatbelts in inmate transport van "was a discretionary, rather than a ministerial, function for which the County was entitled to immunity"). We find the reasoning of these cases persuasive, and we reach the same conclusion here. The decision of a law enforcement agency to provide seatbelts in vehicles used to transport prisoners or detainees clearly involves important policy considerations regarding the safety of prisoners and detainees, law enforcement, corrections staff, and the public. We hold that the decision to remove seatbelts from the vehicle in this case was a discretionary function for which the Sheriff is protected by sovereign immunity. Accordingly, we reverse the order denying the Sheriff's motion to dismiss and remand for the trial court to dismiss count two with prejudice. 11 Reversed and remanded with instructions. SILBERMAN and VILLANTI, JJ., Concur. Opinion subject to revision prior to official publication. 12